Whether the Apprendi requirement, which requires any fact, other than a prior conviction, that increases the penalty for a crime beyond the prescribed statutory maximum be submitted to a jury, and proved beyond a reasonable doubt, applies to criminal fines.

The Southern Union Company was convicted of storing hazardous waste without a permit, in violation the Resource Conservation and Recovery Act (RCRA). Under the RCRA, the one day maximum penalty for storage of a hazardous waste cannot exceed $50,000. The pre-sentencing report set a maximum fine for Southern Union’s offense at $38.1 million, which it arrived at by multiplying the number of days listed in the incitement by $50,000. The jury instructions, however, did not require a finding of the number of days that Southern Union had violated the law. The District Court ultimately imposed a $6 million fine and a $12 million "community service obligation" on Southern Union. On appeal, Southern Union argued that the sentence violated its rights under Apprendi because the jury did not determine the number of days or the duration of the violation and therefore, the maximum sentence that could be supported by the jury’s verdict was $50,000, the maximum for a one day violation. The First Circuit, relying on Oregon v. Ice, 555 US 160 (2009), held that Apprendi does not apply to criminal fines which have historically been within the discretion of judges.